COMPENSATION FOR LOSS OF SUPPORT

 COMPENSATION FOR LOSS OF SUPPORT

TORT LIABILITY

  A party who causes harm to another person through an unlawful act is obligated to compensate for that harm. Firstly, the existence of an unlawful act is necessary. Furthermore, even without an unlawful act, liability may arise due to immorality (Article 49/2 of the Turkish Code of Obligations is said to be a broader provision of liability). There must be damage resulting from the unlawful act. Damage can be the subject of both material and moral compensation. As a rule, the act must have been caused by the person's fault, but the person can be held liable even without fault. These cases are regulated in the Turkish Code of Obligations No. 6098 (Articles 61-71 of the Turkish Code of Obligations). Finally, there must be an appropriate causal link between the act and the damage. This causal link should not be interrupted by force majeure, the fault of a third party, or the fault of the injured party.

 In tort liability, the burden of proof rests with the injured party (Turkish Code of Obligations, Article 50/1). That is, unlike contractual liability, it imposes a burden on the injured party. Therefore, the first liability that injured parties should seek and investigate is contractual liability. The provisions relating to tort liability are also applied to breach of contract by analogy, to the extent appropriate (Turkish Code of Obligations, Article 114).

 The conditions for establishing liability for torts are briefly listed below:

1. An unlawful act
2. Damage
3. Mistake
4. Appropriate causal link

 A person becomes liable for their wrongful act when these conditions are met. One of the important points here is the concept of damage. A person cannot be held liable without damage. Indeed, the purpose of compensation law is to compensate for existing damage. To alleviate certain difficulties and due to the extent of the damage, the legislator has guaranteed certain types of damages through legislation. One of these special cases is damages incurred in the event of death, regulated in Article 53 of the Turkish Code of Obligations.

 ARTICLE 53 - In the event of death, the damages incurred are as follows:

1. Funeral expenses.

2. If death did not occur immediately, medical expenses and losses resulting from the reduction or loss of earning capacity.

3. Losses suffered by those who are deprived of the deceased's support as a result.

 The most prominent of these damage categories is the damage from loss of support. This is because it constitutes an exception to the general rule and classical liability law, as it compensates for the damages of third parties.

* In liability law, the rule is that the party causing the damage pays compensation directly to the injured party (direct damage). In other words, third parties cannot claim compensation. An exception to this is consequential damage. This is a type of damage that does not directly affect the injured party but rather impacts them through reflection. Since it is not a general rule, it is only applied in cases specified by law. This is a practice designed to narrow the scope of liability. The compensation for loss of support, which is of great importance, is actually a type of consequential damage and can be compensated because it is foreseen in the law. If the legislator had not included such a provision, this damage would not be compensated. Accordingly, the compensation for loss of support regulated in Article 53/3 of the Turkish Code of Obligations is of great importance in terms of compensating the damages of third parties.

WHAT IS COMPENSATION FOR LOSS OF SUPPORT?

 Compensation for loss of support is the compensation paid to a third party who was regularly supported by the deceased, to cover the financial losses resulting from the loss of that support.

WHO ARE THE THIRD PARTIES WHO CAN BENEFIT FROM THE COMPENSATION?

  1. The deceased person must provide support (the existence of support).

 This compensation is effectively available to those whom the deceased regularly and consistently provided for, and who are likely to continue doing so in the normal course of life. "Regular and consistent" means that the assistance provided was either a means of livelihood or contributed to their livelihood.

 It is not necessary for the recipient to be a relative, heir, etc., because assistance is given based on the actual circumstances. The mere existence of support is sufficient.

  There are two types of support:

  Actual (or Real) Support: Assistance given to the person who provided support to the deceased before their death and who will continue to provide that support. This support begins to accrue after the date of death.

  Future (Hypothetical) Support: Assistance given to someone who, even though they did not provide support before their death, would most likely have provided support in the future had they not died. It begins to accrue from the estimated date the support would have started. The scope must be kept narrow. For example, if a child who was the sole breadwinner of their family dies in a traffic accident, their parents can claim compensation for loss of support.

  2. It must suffer a loss due to a lack of support.

 The person deprived of support must have experienced a decline in their standard of living as a result of the accident. They do not need to be in dire need; it is sufficient that they will no longer be able to maintain their previous standard of living.

 3. The need for support must continue.

 A person who has lost support due to death or other reasons may also receive benefits. Since the aim is to maintain their position before the loss, these benefits may completely or partially eliminate the harm of the loss of support. For example, if a person who has lost support is considered to have inherited property from a third party, they may no longer need the deceased's support.

SAADET KARTALCI/HUSEYIN DOGAN